People v. Chapman (194 Ill. 2d 186, 2000)

JUSTICE BILANDIC

delivered the opinion of the court:

Defendant, Reginald Chapman, was charged in the circuit court of Cook County with six counts of first degree murder, two counts of aggravated kidnapping, and two counts of concealment of a homicidal death. These charges related to the August 1994 murders of Angela Butler and Christopher Butler. The State nol-prossed the aggravated kidnapping counts, the concealment of a homicidal death counts, and the two felony-murder counts. The jury returned separate general verdicts of guilty against defendant for the first degree murder of Angela Butler and the first degree murder of Christopher Butler.

The same jury found defendant eligible for the death penalty based upon the following two statutory aggravating factors: that the defendant murdered two or more individuals (720 ILCS 5/9 — 1(b)(3) (West 1998)); and that the defendant murdered an individual who was under 12 years of age, and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty (720 ILCS 5/9 — 1(b)(7) (West 1998)). Defendant waived a jury for the second phase of the death sentencing hearing. After considering evidence in aggravation and mitigation, the trial court found no mitigating factors sufficient to preclude imposition of the death penalty and sentenced defendant to death.

Defendant’s death sentence has been stayed pending direct review by this court. See Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that follow, we affirm defendant’s convictions and death sentence.

FACTS

The evidence at trial revealed that on September 4, 1994, a body was reported to be floating in the water in the Calumet Sag Channel in Alsip, Illinois. The Illinois State Police underwater search and recovery team and members of the criminal investigations unit were dispatched to the scene. When dive team members recovered the body, it was floating facedown, and it was wrapped in orange and black electrical cord. The cord was attached to two free weights, one weighing 50 pounds, and the other weighing 25 pounds. The body was bloated, discolored, and decomposed from being in the water.

Investigators determined that the victim was Angela Butler. The police interviewed Georgia Anderson, Angela’s grandmother, who told the investigators that Angela had a five-month-old son, Christopher Butler, and that Angela had been living with the family of her fiancé, Louis Murillo. Angela’s parents lived in Israel, which is where Angela had been raised. Angela had only lived in Chicago, where her grandmother lived, for a few years. Angela’s grandmother informed the police that Angela had been missing since August 27, 1994, and that a missing persons report had been filed with the Chicago police department on August 31, 1994.

Testimony revealed that Angela’s relationship with Murillo began soon after she moved to Chicago and lasted for a year and a half. After Angela ended the relationship, she began to date defendant, and they lived together for several months. On April 9, 1994, Angela gave birth to defendant’s child, Christopher Butler. Their relationship ended soon after. Angela and Murillo then resumed their relationship and became engaged in June 1994, and Angela moved in with the Murillo family. At the end of August 1994, Murillo returned to college in Iowa. Angela planned to move to Iowa in October to live with Murillo.

Curtis Taylor, Murillo’s brother, testified that on August 27, 1994, he, Angela, and other members of Murillo’s family planned to attend a birthday party. At approximately 3 p.m., they stopped at a Dominicks grocery store to buy a cake. Angela and Taylor remained in the car. Angela’s son, Christopher, was also with them and remained in the car. As they were waiting in the car, defendant approached, knocked on the window, and motioned for Angela to exit. Angela asked defendant what he was doing there. Defendant asked to see Christopher, stating that he had not seen him in over a week. After Angela gave the baby to defendant, they walked to defendant’s car, where defendant shoved Angela into his car. Taylor went over to defendant’s car and asked Angela where she was going. Angela responded that she was going for a ride and that she would be back in a few minutes. According to Taylor, Angela seemed frightened, and defendant seemed angry and upset.

When Taylor returned to his car, he realized that Angela had left the baby’s diaper bag in the car. When the other family members returned from the grocery store, they waited for 10 minutes for Angela to return. When they reached the birthday party, Taylor unsuccessfully attempted to telephone Angela. Testimony revealed that Taylor identified defendant in a lineup as the person he saw with Angela and Christopher on August 27, 1994.

Testimony from police officers revealed that, on Friday, September 9, 1994, at approximately 7 a.m., pursuant to the ongoing investigation into the murder of Angela and the disappearance of Christopher, officers arrived at defendant’s apartment and knocked on the door. Defendant was in the apartment with his girlfriend, Tiffany Brownlee, and Tiffany’s 18-month-old son, Jeremy. A police officer read defendant his constitutional rights pursuant to Miranda, and defendant waived these rights. Defendant also signed a consent to search his apartment and his car.

The police subsequently took defendant to the Illinois State Police station at 83rd and King Drive. At around 9:15 a.m., Officer Robert Amenitsch and Officer Kizart interviewed defendant for approximately 45 minutes after again advising defendant of his Miranda rights. Defendant stated that he did not recall the last time he saw Angela. Defendant initially denied owning any weightlifting equipment, but then told the officers that he had recently sold his weight-lifting equipment to an individual named “Foy.” Defendant subsequently told the officers that he had given the weight-lifting equipment to his brother. As we will discuss in detail later, throughout the course of that Friday, authorities interviewed defendant, but when they asked defendant if he knew the location of Angela and Christopher, he began to cry, and the interviews were terminated.

The next morning, Saturday, September 10, 1994, at approximately 11:30 a.m. to 12:30 p.m., defendant, after waiving his Miranda rights, made a statement to Assistant State’s Attorney Pierre Tismo. Tismo testified that defendant admitted that he had spoken to Angela on August 27, 1994, at the grocery store parking lot. Defendant stated that they met to talk about Angela’s upcoming move to Iowa. Defendant said that he, Angela, and Christopher drove in his car to defendant’s apartment, where defendant and Angela argued. Defendant stated that he hit Angela with his open hand, with his fist, and with a baseball bat. When Tismo asked how Angela’s body ended up in the Calumet Sag Channel, defendant responded that he put her there. When asked where Christopher was, defendant put his head down and cried, yet he stated that authorities could find Christopher where they found Angela. On September 12, 1994, Christopher’s decomposed body was recovered from the Calumet Sag Channel. Christopher’s body was tied with orange electrical cords to 40 pounds of weights.

Tiffany Brownlee testified that she was with defendant early in the day on August 27, 1994, the day the victims disappeared. She woke up with defendant at his apartment that morning. Later, they went to defendant’s mother’s house. They were watching television when defendant received a telephone call. He left and said that he would be right back. Tiffany left and went to her mother’s house at around 5:30 p.m. after waiting for V-fe hours for defendant to return. She spent the night at her mother’s house.

Tiffany saw defendant the next day, on August 28, 1994. Defendant picked her up in his car, and they went to defendant’s mother’s house. While they were there, Tiffany saw defendant clean out the trunk of his car. When they returned to defendant’s apartment that evening, she noticed that it was in disarray and that certain items were missing. Among the missing items were a long orange electrical cord that connected the television to an electrical outlet. Also missing was defendant’s weight-lifting equipment. When shown the photographs of the electrical cords and weights that were found on the victims, Tiffany identified those items as the same items that were missing from defendant’s apartment. Tiffany also testified about the events of Friday morning, September 9,1994, when the police arrived at defendant’s apartment. Before defendant opened the door and allowed the officers into his apartment, defendant told Tiffany to tell the police that he had “been with you [Tiffany].”

Crime scene investigator Dexter Bartlett testified regarding his search of defendant’s car. There was a contact blood smear on the rubber weather strip in the trunk of defendant’s car. Bartlett recovered a pair of infant gym shoes from the trunk. These shoes had blood splatters on them. Bartlett testified that the blood splatters on the shoes appeared to have hit the shoes at a 90-degree angle. Crime scene investigator Paul Smith testified regarding his search of defendant’s apartment. Smith recovered several items, including a blanket that had bloodstains on it and a baseball bat. Later testing revealed that the DNA extracted from the bloodstains on the infant shoes and on the blanket matched the DNA of Angela.

Dr. Adrienne Segovia, a forensic pathologist, testified regarding the autopsies of Angela and Christopher. On the back of Angela’s head, there was a one-inch laceration that indicated some type of blunt force trauma. Underneath the laceration, between the scalp and the skull, there was evidence of a hemorrhage. According to Dr. Segovia, this meant that Angela was alive at the time she sustained the laceration because bleeding occurred. The examination also revealed that the right hyoid bone of Angela’s neck was fractured. This injury was consistent with manual strangulation. Dr. Segovia testified that Angela’s body had been in the water for several days. Dr. Segovia concluded that the cause of Angela’s death was strangulation.

Dr. Segovia also testified regarding the autopsy of Christopher. Christopher’s body likewise had been in the water for several days and was severely decomposed. Portions of Christopher’s head and arms were missing, and his body showed indications of “aquatic animal activity.” The medical examiner’s opinion was that the cause of Christopher’s death was suffocation; yet, because of the decomposed state of Christopher’s body from the water, the manner of suffocation was inconclusive.

The jury returned separate general verdicts of guilty against defendant for the first degree murder of Angela and the first degree murder of Christopher. Prior to the sentencing hearing, the trial court merged the knowledge counts into the intent counts and entered judgment of first degree intentional murder as to Angela and first degree intentional murder as to Christopher. At the first phase of the sentencing hearing, the jury found defendant eligible for the death penalty based upon the following two statutory aggravating factors: that the defendant murdered two or more individuals (720 ILCS 5/9 — 1(b)(3) (West 1998)); and that the defendant murdered an individual who was under 12 years of age, and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty (720 ILCS 5/9 — 1(b)(7) (West 1998)). Defendant waived a jury for the second phase of the sentencing hearing. He also waived his right to be present during the second phase of the hearing. After considering evidence in aggravation and mitigation, evidence which we will later discuss in more detail, the trial court found no mitigating factors sufficient to preclude imposition of the death penalty and sentenced defendant to death for the murders of Angela and Christopher.

The trial court denied defendant’s motion for a judgment notwithstanding the verdict or, alternatively, a new trial, and denied defendant’s motion to vacate the death sentence. The trial court also denied defendant’s pro se motion to set aside the jury verdict and for a new trial. Defendant now appeals his convictions and sentence.

ANALYSIS

I. Trial Issues

A. Motion to Suppress Statements

Defendant argues that the trial court erred in denying his motion to suppress statements he made to authorities. Defendant argues that the police interfered with his opportunity to consult with counsel prior to custodial interrogation and thereby violated his state constitutional right to due process (see Ill. Const. 1970, art. I, § 2) and right against self-incrimination (see Ill. Const. 1970, art. I, § 10). Defendant argues that the admission of these statements requires reversal of his conviction and a new trial. For the following reasons, we reject defendant’s argument.

Prior to trial, defendant filed a motion to suppress inculpatory statements he made to authorities. The trial court held a hearing on the motion to suppress at which the following evidence was presented. On Friday, September 9, 1994, at approximately 7 a.m., pursuant to the ongoing investigation into the murder of Angela Butler and disappearance of Christopher Butler, police officers arrived at defendant’s apartment. Defendant agreed to talk with the officers and allowed them entry into his apartment. Officer James Kizart read defendant his constitutional rights pursuant to Miranda, and defendant waived these rights. Defendant talked with the officers and subsequently agreed to accompany them to the police station.

The police took defendant to the Illinois State Police station at 83rd and King Drive. At around 9:15 a.m., Officer Robert Amenitsch and Officer Kizart interviewed defendant for approximately 45 minutes after again advising defendant of his Miranda rights, which he waived. Defendant stated that he did not recall the last time he saw Angela. Defendant initially denied owning any weight-lifting equipment, but then told the officers that he had recently sold his weight-lifting equipment to an individual named “Foy.” Defendant subsequently told the officers that he had given the weight-lifting equipment to his brother.

At approximately 11 a.m. on Friday, September 9, 1994, Officer Kizart and Officer Carolyn Black interviewed defendant for about an hour after again advising defendant of his Miranda rights, which he again waived. The officers showed defendant pictures of Angela and Christopher and asked him if he knew where they were. Defendant responded that he did not know where they were but that they were together. When Officer Black showed defendant a picture of Angela’s body after it had been recovered from the Calumet Sag Channel, defendant began to sob, and the interview was terminated.

At approximately 2:15 p.m., Officer Tasso Kachirou-bas and another officer spoke with defendant for about 15 minutes and asked defendant for more specific information regarding the location of Christopher’s body. Defendant did not say anything and began to cry. Officer Kachiroubas and an assistant State’s Attorney spoke with defendant for 15 minutes at about 8 p.m. that Friday. Officer Kachiroubas explained that divers were scheduled to begin a search for Christopher the next morning, and that authorities needed defendant’s assistance in determining a target area. Defendant began to sob, and the interview was terminated. Defendant waived his Miranda rights during these conversations.

At approximately 5:30 the next morning, Saturday, September 10, 1994, defendant was transferred from the Illinois State Police station on 83rd and King Drive to the Blue Island police station. Testimony revealed that the police station on 83rd and King Drive does not have a holding facility, and it is therefore customary to transfer suspects to other police stations when a holding facility becomes necessary.

At approximately 11:30 on that Saturday morning, September 10, 1994, Assistant State’s Attorney Pierre Tismo arrived at the Blue Island police station to assist in the investigation. Defendant was advised of his Miranda rights and agreed to speak to Tismo. During an interview that lasted for about an hour, until 12:30 p.m., defendant stated that he had spoken to Angela on August 27, 1994, at the grocery store parking lot. Defendant said that they met to talk about Angela’s upcoming move to Iowa. Defendant recounted that he, Angela, and Christopher drove in his car to defendant’s apartment, where defendant and Angela argued. Defendant stated that he hit Angela with his open hand, with his fist, and with a baseball bat. When Tismo asked how Angela’s body ended up in the Calumet Sag Channel, defendant responded that he put her there. When asked where Christopher was, defendant put his head down and cried. Defendant stated that authorities could find Christopher where they found Angela.

While Tismo was interviewing defendant, Officer Carolyn Black, who was in charge of the investigation and who had interviewed defendant the previous day, was at home preparing to come to work. Officer Black testified at the suppression hearing that, at approximately 11:30 to 11:40 on that Saturday morning, she received a page. She dialed the phone number, and the person who answered identified himself as an attorney representing “defendant’s father.” Officer Black had apparently spoken to defendant’s father at 83rd and King Drive the previous day when defendant’s father had gone there to inquire about defendant. Defendant’s father had been informed that defendant was being questioned about the disappearance of Angela and Christopher. In response to the caller’s request for information regarding defendant, Officer Black stated that she was at home, that she had no way of verifying the caller’s identity, and that she would not discuss defendant’s case over the telephone. According to Officer Black, when the caller began to shout at her, she terminated the call.

Shortly after this telephone conversation, Officer Black left for work. During her 70-minute drive to the Blue Island police station, Officer Black received another page with a phone number she did not recognize. She was not able to return this page because she did not have a cellular phone. Officer Black arrived at the Blue Island police station at around 1:30 p.m.

Nathan Diamond-Falk also testified at the suppression hearing. On Saturday, September 10, 1994, at about 10 a.m., defendant’s father retained him to represent defendant. Diamond-Falk testified that at some time he made several telephone calls to obtain information about defendant, and was eventually given the name and pager number of Officer Black. He paged Officer Black, who returned the call at about 11 a.m. but refused to give him information without first verifying his identity. According to Diamond-Falk, he gave Officer Black the phone number and address of his home and office so that she could confirm his identity. Diamond-Falk maintained that Officer Black stated that she would call him back, but that she never did.

Diamond-Falk then drove to the police station at 83rd and King Drive. Diamond-Falk testified that he arrived at the police station at approximately 12:30 or 12:45 p.m. Diamond-Falk, however, testified that he remembered listening to the Michigan versus Notre Dame football game on his way to the station. The parties stipulated that on September 10, 1994, this football game started at 1:45 p.m. Diamond-Falk stated that he arrived at the police station in the afternoon, but did not recall the exact time. Diamond-Falk stated that, when he was at the police station, he informed individuals that he was an attorney and that he represented defendant, but that he was not told defendant’s location. Diamond-Falk did not remember the description of the person to whom he spoke when he arrived at the police station. The officer on duty at the 83rd and King Drive police station from 7 a.m. to 3 p.m. on Saturday, September 10, 1994, testified that he did not recall talking with Diamond-Falk. Diamond-Falk testified that he remained at the police station for two hours, but was never told of defendant’s location. On Sunday, September 11, 1994, defendant gave more detailed statements regarding the murders. Diamond-Falk never met with defendant on Sunday.

The trial court found that “the defendant was advised of his Miranda warnings numerous times, agreed to waive those warnings and agreed to speak to authorities; that the defendant did not ask to speak [to] or see a lawyer; that the defendant voluntarily consented to the searches; that the police or the state’s attorney did not coerce the defendant into giving any oral or written statements.” The trial court further found that “the move from 83rd and King to the Blue Island police station was not made in order to hold the defendant incommunicado; that the move was made in good faith pursuant to [a] valid investigatory process,” and that the “immediate investigating police and state’s attorney were not aware that Mr. Diamond-Falk arrived at the 83rd Street station.” Nevertheless, the trial court held that, under People v. McCauley, 163 Ill. 2d 414 (1994), any statements made after attorney Diamond-Falk arrived at the police station at 83rd and King Drive, where defendant was last seen, must be suppressed. The trial court found that Diamond-Falk arrived at the police station at 2 p.m. on Saturday, September 10, 1994. Thus, the trial court suppressed all statements given by defendant after that time.

Defendant now contests the admissibility of the statement that he gave to the assistant State’s Attorney on Saturday, September 10, 1994, from approximately 11:30 a.m. to 12:30 p.m. Defendant argues that this statement also should have been suppressed because it was obtained in violation of the constitutional principles expressed in McCauley. We note that a trial court’s ruling on a motion to suppress evidence generally is subject to reversal only if manifestly erroneous. People v. Johnson, 182 Ill. 2d 96, 108 (1998); People v. Kidd, 175 Ill. 2d 1, 27 (1996). The issue in this appeal, however, involves the trial court’s application of the law to uncontested facts, and we therefore conduct de novo review. See People v. Wright, 183 Ill. 2d 16, 21 (1998).

A defendant’s right against self-incrimination is guaranteed by the fifth and fourteenth amendments of the United States Constitution and by article I, section 10, of the Illinois Constitution of 1970. This right includes the right to an attorney. McCauley, 163 Ill. 2d at 421. A defendant, however, may waive these rights, provided that the waiver is voluntary, knowing, and intelligent. In determining whether this waiver is knowing and intelligent, a court considers the totality of the circumstances, including the characteristics of the defendant and the details of the interrogation. McCauley, 163 Ill. 2d at 421. The State bears the burden of proving, by a preponderance of the evidence, that the defendant made a voluntary, knowing, and intelligent waiver of these rights. McCauley, 163 Ill. 2d at 422. This court in McCauley addressed these principles.

In McCauley, the defendant was brought to the police station for questioning in connection with a murder. The defendant was advised of his Miranda rights and did not request an attorney. However, unbeknownst to the defendant, his family had retained an attorney for him. The defendant’s attorney called the police station and ultimately went to the police station and requested to speak with the defendant. When the defendant’s attorney arrived at the police station, the police officers refused the attorney access to the defendant and also failed to inform the defendant that his attorney was present at the station and seeking to consult with him. The defendant subsequently gave a statement to the police in response to their questioning. The trial court granted the defendant’s motion to suppress the statement. McCauley, 163 Ill. 2d at 418-20.

This court affirmed the suppression of the defendant’s statement on the ground that the conduct of the police violated the defendant’s rights under the Illinois Constitution. This court explained that the United States Supreme Court, in Moran v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986), rejected the contention that such police conduct violated a defendant’s right to counsel under the fifth amendment to the United States Constitution. Nevertheless, this court in McCauley proceeded to consider whether such conduct violated the defendant’s right to counsel under article I, section 10, of the Illinois Constitution of 1970. This court concluded that the right to counsel under the Illinois Constitution should be construed more broadly than its federal counterpart. McCauley, 163 Ill. 2d at 423-24.

This court in McCauley proceeded to hold that the conduct of the police rendered the defendant’s waiver of counsel invalid. The record showed that the police refused the defendant’s attorney access to the defendant during interrogation and did not inform defendant that his attorney “was present at the station, seeking to consult with him.” McCauley, 163 Ill. 2d at 445. Thus, the defendant was denied information necessary to “knowingly and intelligently waive his right to his attorney’s presence as well as the actual and immediately available assistance of his own attorney.” McCauley, 163 Ill. 2d at 446. In light of these circumstances, this court held that the State failed to satisfy its burden of showing that the defendant knowingly waived his right to counsel under the Illinois Constitution (see Ill. Const. 1970, art. I, § 10). McCauley, 163 Ill. 2d at 445-46.

This court also concluded that, based upon the record, the defendant’s statement to the police was obtained in violation of the defendant’s due process rights under article I, section 2, of the Illinois Constitution of 1970. The court held that “due process is violated when police interfere with a suspect’s right to his attorney’s assistance and presence by affirmatively preventing the suspect, exposed to interrogation, from receiving the immediately available assistance of an attorney hired or appointed to represent him.” McCauley, 163 Ill. 2d at 444.

Our appellate court has faced the issue of whether the holding in McCauley applied to factual scenarios where an attorney merely telephoned the police station to contact a client in custody. The appellate court has reached different results in those cases. Compare People v. Milestone, 283 Ill. App. 3d 682, 684-87 (1996) (holding (that police officers’ failure to inform the defendant in custody that his attorney was on the telephone seeking to consult with him rendered the defendant’s subsequent statements not admissible), with People v. Albrecht, 271 Ill. App. 3d 629, 630-32, 637, 639 (1995) (holding, in a situation where the police did not inform the defendant in custody that an attorney was seeking to consult with him by telephone and then later in person at the police station, that all statements made after the attorney arrived at the police station were not admissible, but that any statements .made before the attorney arrived at the police station were admissible). For the following reasons, we hold that, in this case, the McCauley rule does not require the suppression of the statement that defendant made after the time that his attorney telephoned the police station, but before the time his attorney was physically present at the police station. To the extent that the appellate court decision in People v. Milestone, 283 Ill. App. 3d 682 (1996), is not consistent with our holding, it is hereby overruled.

This court in McCauley squarely held that a defendant’s state constitutional rights were violated where the police denied the attorney retained for the defendant physical access to the defendant during interrogation, and where the police did not inform the defendant that the attorney was seeking to consult with him at the police station. McCauley, 163 Ill. 2d at 444-46. Under those circumstances, the State failed to satisfy its burden of showing that the defendant had knowingly waived his state constitutional rights. McCauley, 163 Ill. 2d at 445.

The circumstances in this case are different from the circumstances in McCauley. On Saturday, September 10, 1994, defendant, after being repeatedly advised of his Miranda rights, confessed that he hit Angela with his open hand, with his fist, and with a baseball bat, and that he put Angela in the Calumet Sag Channel. Defendant made this statement between 11:30 a.m. and 12:30 p.m. Defendant’s attorney did not arrive at the police station until 2 p.m. and was therefore not “physically present” and “immediately available” to defendant until that time. The trial court suppressed all statements defendant made after 2 p.m. Here, the State satisfied its burden of showing that defendant knowingly waived his state constitutional rights. Indeed, the trial court found that “the defendant was advised of his Miranda warnings numerous times, agreed to waive those warnings and agreed to speak to authorities; that the defendant did not ask to speak [to] or see a lawyer; *** that the police or the state’s attorney did not coerce the defendant into giving any oral or written statements.”

Defendant nevertheless suggests that the police conduct in this case was deceitful and that this conduct impacted his decision to knowingly waive his rights. He references the fact that authorities moved defendant from the Illinois State Police station on 83rd and King Drive to the Blue Island police station. Contrary to defendant’s contentions, the record in this case does not reveal any deceitful acts by the police. The trial court specifically found that “the move from 83rd and King to the Blue Island police station was not made in order to hold the defendant incommunicado; that the move was made in good faith pursuant to [a] valid investigatory process.” Testimony at the suppression hearing revealed that the police station on 83rd and King Drive does not have a holding facility, and it is therefore customary to transfer suspects to other police stations when a holding facility becomes necessary. Moreover, the trial court held that any statements defendant made after 2 p.m., the time when defendant’s attorney arrived at the 83rd and King Drive police station, were not admissible, as this was the last known location of defendant. The decision in McCauley focused on the deceitful acts by the police which prevented immediately available counsel from assisting a client during custodial interrogation. See Johnson, 182 Ill. 2d at 106 (discussing the McCauley holding in rejecting the defendant’s argument that his statement should be suppressed because he gave the statement after the police removed him from a room where he was waiting to appear for a preliminary hearing on an unrelated charge). There was no such deceitful conduct in this case.

Defendant, however, also references Officer Black’s refusal to give attorney Diamond-Falk information when Diamond-Falk telephoned Officer Black. We do not view Officer Black’s prudent refusal to discuss the details of defendant’s case over the telephone with a stranger to constitute deceitful conduct. This situation exemplifies the problems inherent in expanding the holding in Mc-Cauley to situations where an attorney who is seeking contact with a client in custody is not physically present at the police station. The police have no way of verifying that the voice on the telephone is actually the suspect’s attorney. Defendant suggests that this problem could be rectified by requiring the attorney to provide the police his or her Attorney Registration and Disciplinary Commission number. There is still no way to verify that this number belongs to the voice on the telephone. Only through physical presence may the police verify, through proper identification, that the person in front of them is the person he or she is claiming to be.

We hold that, under McCauley, the statements that defendant made after his attorney arrived at the police station were properly suppressed. The statement that defendant made before his attorney arrived at the police station was properly admitted at defendant’s trial. This holding strikes the appropriate balance between the state’s interest in effective crime investigation and a suspect’s state constitutional rights to due process and against self-incrimination (see Ill. Const. 1970, art. I, §§ 2, 10).

Because of our resolution of this issue, we need not address the State’s alternative argument that, in light of all of the other evidence of defendant’s guilt, the admission of defendant’s statement was harmless error and does not require a new trial.

B. Delay Between Arrest and Preliminary Hearing

Defendant next argues that his statement should be suppressed because of the three-day delay between his arrest and his preliminary hearing. Defendant was arrested at approximately 7 a.m. on Friday, September 9, 1994. According to the testimony at the suppression hearing, defendant was brought to the Markham courthouse for a preliminary hearing late in the evening on Sunday, September 11, 1994, or early in the morning on Monday, September 12, 1994. Defendant argues that this three-day delay entitles him to a new trial at which his statement from Saturday, September 10, 1994, must be suppressed. We reject defendant’s argument.

Illinois law provides that a person arrested with or without a warrant shall be brought before a judge for a preliminary hearing “without unnecessary delay.” 725 ILCS 5/109 — 1(a) (West 1998). This court has held that a delay between an arrest and a preliminary hearing is merely a factor to be considered in determining whether a confession was voluntary and, therefore, does not invalidate a confession per se. See People v. House, 141 Ill. 2d 323, 380 (1990). Whether a confession is voluntary is judged by the totality of the circumstances, which include: the age, education, and intelligence of the accused; the duration of both the detention and the questioning; whether the accused was advised of his or her constitutional rights; and whether the accused was subjected to physical mistreatment. See House, 141 Ill. 2d at 376. Where, as here, a trial court’s ruling on a motion to suppress a confession involves factual determinations and credibility assessments, a reviewing court will not disturb the ruling unless it is manifestly erroneous. See Johnson, 182 Ill. 2d at 108.

The trial court in this case found that “the defendant was advised of his Miranda warnings numerous times, agreed to waive those warnings and agreed to speak to authorities; that the defendant did not ask to speak [to] or see a lawyer; that the defendant voluntarily consented to the searches; that the police or the state’s attorney did not coerce the defendant into giving any oral or written statements.” The record shows that defendant was an educated adult. Defendant was fully advised of his constitutional rights. Defendant was given opportunities to eat, sleep, and use the restroom, and the questioning was intermittent. There was no physical mistreatment. The trial court also found that the time between defendant’s arrest and defendant’s first court appearance was not unreasonable, as the delay was attributable to the search for the missing five-month-old Christopher. The trial court’s holding that defendant’s confession was voluntary is not manifestly erroneous.

Defendant nevertheless argues that the delay between his warrantless arrest and preliminary hearing violated his fourth amendment right to a prompt determination of probable cause. See U.S. Const., amend. IV; Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). In County of Riverside v. McLaughlin, 500 U.S. 44, 56, 114 L. Ed. 2d 49, 63, Ill S. Ct. 1661, 1670 (1991), the United States Supreme Court held that a judicial determination of probable cause within 48 hours of arrest generally passes constitutional muster. When a probable cause determination is not made within 48 hours of arrest, the burden shifts to the government to show the existence of a bona fide emergency or other extraordinary circumstances to justify the delay. McLaughlin, 500 U.S. at 57, 114 L. Ed. 2d at 63, Ill S. Ct. at 1670.

Here, as the trial court found, the delay was attributable to the existence of the emergency of finding the missing five-month-old Christopher. The police knew that Christopher was last seen with defendant. Divers had been unsuccessful in their efforts to find Christopher in the Calumet Sag Channel. Much of the questioning of defendant that occurred during the three-day period focused on seeking information regarding Christopher’s location. We therefore reject defendant’s argument that he is entitled to a new trial at which his statement must be suppressed.

C. Motion to Quash Arrest and Suppress Evidence

Prior to trial, defendant filed a motion to quash his arrest and suppress evidence resulting from the arrest. After a hearing, the trial court denied defendant’s motion. The trial court found that the police had probable cause to arrest defendant on the morning of Friday, September 9, 1994, when police officers arrived at his apartment. The trial court also found that defendant allowed the police officers into his apartment and then voluntarily signed a form consenting to a search of his apartment and his car. Defendant now argues that the trial court erred in denying his motion to quash his arrest and suppress evidence. Defendant contends that he was arrested without probable cause and that he is therefore entitled to a new trial at which all evidence resulting from his arrest must be suppressed. Defendant argues that the consent-to-search form was also a product of his unlawful arrest and that all evidence resulting from this consent therefore must be suppressed. We reject defendant’s argument and hold that the police had probable cause to arrest defendant at his apartment on the morning of Friday, September 9, 1994.

Both the United States Constitution and the Illinois Constitution protect individuals from unreasonable searches and seizures. U.S. Const., amends. I\£ XIV; 111. Const. 1970, art. I, § 6. A warrantless arrest is lawful where police have knowledge of facts which would lead a reasonable person to believe that a crime has occurred and that the person to be arrested committed the crime. People v. Buss, 187 Ill. 2d 144, 204 (1999); People v. Kidd, 175 Ill. 2d 1, 22 (1996). The determination of whether police had probable cause to arrest focuses on the factual considerations upon which reasonable, prudent people, not legal technicians, act. Buss, 187 Ill. 2d at 204; Kidd, 175 Ill. 2d at 24. This determination considers facts known to the police at the time the arrest was made. Buss, 187 Ill. 2d at 204. A defendant has the burden of demonstrating an illegal search or seizure. Buss, 187 Ill. 2d at 204; Kidd, 175 Ill. 2d at 22. When a trial court’s ruling on a motion to quash arrest and suppress evidence involves factual determinations and credibility assessments, a reviewing court will not reverse the ruling unless it is manifestly erroneous. See Buss, 187 Ill. 2d at 204; People v. Wright, 183 Ill. 2d 16, 21 (1998). De novo review is appropriate, however, when there are no factual or credibility disputes, and the appeal therefore involves a pure question of law. Buss, 187 Ill. 2d at 204-05; Wright, 183 Ill. 2d at 21. The resolution of defendant’s argument in this appeal does not turn on such disputes; thus, our review is de novo.

Here, the police had probable cause to arrest defendant based upon the following information which was known to the police at the time of the arrest. Angela’s body, bound with weights, had been retrieved from the Calumet Sag Channel on September 4, 1994. The police interviewed Curtis Taylor, the brother of Louis Murillo, Angela’s fiancé. Taylor was with Angela in a grocery store parking lot on August 27, 1994. As they were sitting in their car waiting for other family members in the store, defendant approached the car and had a discussion with Angela. Defendant shoved Angela into his car and drove away with Angela and Christopher. This was the last time Angela and Christopher were seen alive. Taylor described Angela as “frightened” and defendant as “hostile.” Records showed that the car defendant owned matched Taylor’s description of defendant’s car. The fact that Angela was last seen alive when she drove away with defendant supports the probable cause finding. See Buss, 187 Ill. 2d at 206-08.

Additionally, the clothing found on Angela’s body was identified as the clothing Angela was wearing on the day she disappeared. The September 5, 1994, autopsy revealed that Angela’s body had been in the water for several days. This was consistent with the time between when Angela disappeared and when her body was retrieved from the channel.

Further, a police report and interviews with Angela’s grandmother and Elaina Murillo, the sister of Angela’s fiancé, revealed some of the abuse that Angela suffered at the hands of defendant during their relationship. Finally, Elaina Murillo also revealed that Angela was engaged to Louis Murillo and was planning to move to Iowa to live with him.

These circumstances would lead a reasonable person to conclude that a crime had been committed and that defendant committed the crime. “ ‘[Probability of criminal activity, rather than proof beyond a reasonable doubt, is the standard for determining whether probable cause is present.’ ” Buss, 187 Ill. 2d at 205-06, quoting People v. House, 141 Ill. 2d 323, 370 (1990). Here, the totality of the circumstances reveals that the police had probable cause to arrest defendant at his apartment on the morning of Friday, September 9, 1994.

As a final matter, we reject defendant’s suggestion that the State did not establish probable cause to arrest him because a police officer testified at the hearing that the police would not have been able to obtain an arrest warrant before going to defendant’s apartment. “Probable cause is an objective standard, and an officer’s subjective belief as to the existence of probable cause is not determinative.” Buss, 187 Ill. 2d at 209 (rejecting the defendant’s argument that the determination of probable cause was affected by police officers’ testimony that they did not believe that they had probable cause to arrest the defendant). As we have discussed, the facts demonstrate that the police had probable cause to arrest defendant, and a subjective belief to the contrary does not change that conclusion.

We hold that the police had probable cause to arrest defendant at his apartment on the morning of Friday, September 9, 1994. We therefore reject defendant’s argument that he is entitled to a new trial at which all evidence resulting from that arrest must be suppressed.

D. Admissibility of Autopsy and Crime Scene Photographs

Defendant next argues that he was denied his due process right to a fair trial when the trial court admitted into evidence certain photographs from the autopsy and the crime scene, and allowed six of these photographs to be sent to the jury during deliberations. According to defendant, “[wjhere the cause of death was stated to be consistent with strangulation and suffocation, and the State nolle prossed the concealment of homicide counts, there was no purpose served by the admission of gory photographs from the scene and the autopsy.”

The decision of whether a jury should be allowed to see photographs of a decedent is a decision that rests within the sound discretion of the trial judge. People v. Heard, 187 Ill. 2d 36, 76-77 (1999); People v. Henderson, 142 Ill. 2d 258, 319 (1990). If photographs are relevant to prove facts at issue, they are admissible and may be shown to the jury unless the prejudicial nature of the photographs outweighs their probative value. Heard, 187 Ill. 2d at 77; Henderson, 142 Ill. 2d at 319. When a defendant in a murder trial pleads not guilty, the prosecution is allowed to prove every element of the crime charged and every relevant fact. Henderson, 142 Ill. 2d at 319. Among the valid reasons for admitting photographs of a decedent are to prove the nature and extent of the injuries, the position, condition, and location of the body, and the manner and cause of death; to corroborate a defendant’s confession; and to aid in understanding the testimony of a pathologist or other witness. See Heard, 187 Ill. 2d at 77; Henderson, 142 Ill. 2d at 319-20. If photographs could aid the jury in understanding testimony, they may be admitted even if cumulative of that testimony. Heard, 187 Ill. 2d at 77; Henderson, 142 Ill. 2d at 320.

Here, the photographs about which defendant complains include depictions of Angela’s body in the Calumet Sag Channel; Angela’s decomposed face and body after being recovered from the channel; Angela’s back, showing the cords used to tie the weights to her body; and Christopher’s decomposed body after being recovered from the channel. Parenthetically, we note that the record does not include all of the actual photographs to which defendant refers.

The trial court did not abuse its discretion in admitting these photographs. The State presented these photographs to certain witnesses during their testimony. An investigating police officer, used a photograph of Angela’s body in the channel to explain his testimony regarding the recovery of Angela’s body by the dive team. A crime scene investigator used photographs of Angela’s body in and out of the channel to explain his testimony about the location and condition of her body and about the collection of evidence at the scene. The pathologist used photographs of Angela’s face and back after recovery from the channel in discussing the effects of decomposition in the water, including skin slippage and distortion of facial features. A crime scene investigator used a photograph of Christopher’s body after recovery to explain the extensive decomposition that occurred and the position of the electrical cords and weights on his body. These are all valid reasons for admitting photographs of a decedent. See Heard, 187 Ill. 2d at 77; Henderson, 142 Ill. 2d at 319-20. As we have discussed, the prosecution is allowed to prove every element of the crime charged and every relevant fact.

The trial court likewise did not abuse its discretion in allowing six of these photographs to be sent to the jury during deliberations. The record reveals that the trial court carefully examined these photographs and determined that they were relevant to the issues involved in the case. The trial court then determined that the probative value of these six photographs was not outweighed by any prejudice. The record reflects that the trial court chose to send to the jury what the court termed to be the least “graphic” photographs. In doing so, the trial court allowed only six of the photographs to be sent to the jury for deliberations. These photographs served to assist the State in proving the position, condition, and location of the victims’ bodies. The photographs also served to aid the jury’s understanding of the testimony of the pathologist and the crime scene investigators. We note that the trial court also instructed the jury, prior to deliberations, that, “[pjhotographs of the deceased have been admitted into evidence and will be received by you. These photographs are admitted to better help you understand the evidence in this case. The photographs should not be allowed to influence your passions. Neither sympathy or prejudice should influence your decision.” We therefore reject defendant’s argument that he is entitled to a new trial based on the admission of these photographs.

E. Prim Instruction

Defendant argues that he is entitled to a new trial because the trial court erred when it denied defendant’s request, made before the jury began deliberations, to give the jury a Prim instruction. See People v. Prim, 53 Ill. 2d 62 (1972). The Prim instruction informs the jury of the requirement that the verdict be unanimous; that the jury has a duty to deliberate; that jurors must impartially consider the evidence; and that jurors should not hesitate to reexamine their views and change their opinions if they believe them to be erroneous, provided the change is not solely because of the opinion of fellow jurors or for the mere purpose of returning a verdict. Prim, 53 Ill. 2d at 75-76. It is up to the trial court’s discretion whether to give such an instruction and, if so, when to give the instruction. People v. Cowan, 105 Ill. 2d 324, 328 (1985). The trial court should make these determinations based upon such factors as the length of time already spent in deliberation and the complexity of the issues before the jury. Cowan, 105 Ill. 2d at 328.

In this case, before the jury began its deliberations, defendant requested that the jury receive the Prim instruction. The State objected to this instruction on the basis that it was premature. The trial court agreed and denied defendant’s request, stating that this instruction “is only given when the jury is having a problem with their coming to a verdict.” We hold that the trial court did not abuse its discretion in denying the Prim instruction. The purpose of the Prim instruction is to guide a jury that is unable to reach a unanimous verdict. Cowan, 105 Ill. 2d at 328. Here, defendant requested the Prim instruction before the jury even began to deliberate. Defendant does not argue that the jury in this case had any difficulty reaching a unanimous verdict, and the record reflects no such difficulty.

Defendant cites People v. McNeal, 94 Ill. App. 3d 1000 (1981), in which the defendant argued that the trial court erred in giving a Prim instruction to the jury prior to deliberations. The court in McNeal rejected this argument, holding that the defendant failed to show how he was prejudiced by the instruction. McNeal, 94 Ill. App. 3d at 1004-05. Defendant’s reliance on cases such as McNeal is misplaced. Even if the Prim instruction may be given prior to jury deliberations, the trial court’s failure to do so is not error. As discussed, it is within the trial court’s discretion whether to give such an instruction and, if so, when to give the instruction. See Cowan, 105 Ill. 2d at 328.

Defendant nevertheless argues that the trial court erred in failing to recognize that it had the discretion to give the Prim instruction before the jury began to deliberate. Defendant contends that the “failure to recognize the existence of judicial discretion is itself an abuse of discretion and requires reversal of the convictions in this case.” In support of this contention, defendant cites People v. Gibson, 136 Ill. 2d 362 (1990), and People v. Queen, 56 Ill. 2d 560 (1974).

In Queen, the trial court refused a jury’s request during deliberations for a review of the defendant’s testimony. The trial court erroneously responded that it did not have discretion to allow the request. Queen, 56 Ill. 2d at 565. This court reversed and remanded for a new trial. We noted that error occurs “when a trial court refuses to O exercise discretion in the erroneous belief that it has no discretion as to the question presented.” Queen, 56 Ill. 2d at 565. This court held that, under the circumstances of the case, where the jury’s determination of the defendant’s credibility was a critical factor, the trial court’s error was of such substance as to require a new trial. Queen, 56 Ill. 2d at 565-66.

In Gibson, the trial court granted the public defender’s motion for leave to withdraw as standby counsel for a pro se defendant based upon the mistaken belief that the court did not have statutory authority to make such an appointment. Consequently, the defendant represented himself pro se in a capital murder case. Gibson, 136 Ill. 2d at 372-74. This court, however, determined that the trial court possessed the discretion to appoint standby counsel and was authorized by statute to appoint the public defender’s office as standby counsel. We held that, under the circumstances of the case, the failure to appoint standby counsel would have been an abuse of discretion, and the trial court’s refusal to continue the public defender’s appointment as standby counsel prejudiced the defendant such that a new trial was required. Gibson, 136 Ill. 2d at 380-83. Significantly, this court held that, in light of this holding, it need not consider the defendant’s argument, based on Queen, that the trial court’s failure to exercise its discretion, without more, requires reversal. Nevertheless, we noted that the defendant’s reliance on Queen for this proposition was questionable and that “the utility of the defendant’s suggested rule of automatic reversal is doubtful.” Gibson, 136 Ill. 2d at 380. “For example, if it could be determined that the refusal to appoint standby counsel would not have been an abuse of discretion, there would be no purpose now in remanding the cause for further proceedings solely on the ground that the trial judge failed to exercise his discretion.” Gibson, 136 Ill. 2d at 380. 0

A review of Queen and Gibson demonstrates that “the effect of such a failure to exercise discretion must be assessed in the context of the entire proceeding [citation].” Gibson, 136 Ill. 2d at 379. Here, even if the trial court may give the Prim instruction prior to deliberations, and assuming that the trial court failed to recognize that it had the discretion to give the jury the Prim instruction prior to deliberations, and that this was error, this is not an error of such magnitude that a new trial is warranted. Defendant has offered no argument to suggest any prejudice resulting from the trial court’s purported failure to recognize that it had the discretion to give the jury the Prim instruction prior to deliberations. The record does not reflect that the jury had any difficulty in reaching a unanimous verdict. We therefore reject defendant’s argument that he is entitled to a new trial on the basis of the trial court’s failure to give the jury the Prim instruction.

F. Appointment of Additional Counsel

Defendant argues that he is entitled to a new trial because the trial court erred in failing to appoint two attorneys to represent him at trial. Defendant essentially contends that this court should interpret Illinois law to require that all capital defendants be represented at trial by two attorneys.

The State argues that this issue is waived because defendant failed to raise it in his post-trial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). We note also that defendant never raised this argument at trial. Defendant argues in his brief in this court that “[o]n November 14, 1997, Mr. Chapman [defendant] requested the circuit court to review his situation wherein he was represented by a single defense counsel.” The record does not support this argument. Defendant cites a colloquy that occurred between defendant and the trial court at a hearing preceding the trial court’s ruling on defendant’s motion to suppress his statements. Defendant complained of counsel’s failure to use certain alleged impeachment evidence.

Defendant nevertheless argues that, even if he waived this contention, we should address it under the plain error doctrine. To preserve an alleged error for review, a defendant must raise a timely objection at trial and identify the alleged error in a written post-trial motion. People v. Miller, 173 Ill. 2d 167, 191 (1996). Failure to preserve an alleged error in such a manner constitutes a procedural default of that error on appeal. People v. Simms, 143 Ill. 2d 154, 170 (1991). Nevertheless, pursuant to Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), this court may review an argument not properly preserved if we determine that plain error affecting a substantial right has occurred. People v. Shaw, 186 El. 2d 301, 326 (1998). Before invoking the plain error exception, however, we determine whether any error occurred. People v. Wade, 131 El. 2d 370, 376 (1989).

Defendant contends that he is entitled to a new trial because the trial court erred in failing to appoint two attorneys to represent him at trial. In support of this argument, defendant cites Supreme Court Rule 607(a) (177 Ill. 2d R. 607(a)), which provides in relevant part: “When a death sentence has been imposed, the court may appoint two attorneys, one of whom it shall designate as the responsible attorney and the other as assistant attorney for the appeal.” Defendant argues that Supreme Court Rule 607(a) must be read in pari materia with the statutes governing the appointment of counsel in capital cases. See, e.g., 725 ILCS 5/113 — 3(b) (West 1998) (governing the appointment of counsel in cases where a defendant is indigent); 725 ILCS 5/113 — 3(d) (West 1998) (governing the payment of expert witnesses in capital cases where the defendant is indigent); 725 ILCS 5/113— 3.1 (West 1998) (governing payment for court-appointed counsel). According to defendant, if the statutes are read together with Supreme Court Rule 607(a), they show that two attorneys should be appointed for the trial phase in a capital case.

In People v. Howery, 178 Ill. 2d 1, 52-53 (1997), this court rejected the same argument. We noted that the record showed that the defendant was in fact represented by two attorneys during trial. Howery, 178 Ill. 2d at 53. We then stated: “[Sjection 113 — 3 does not require the appointment of more than one attorney for a defendant at the trial stage. We reject the defendant’s contention that Supreme Court Rule 607(a) dictates otherwise in a trial context. Rule 607(a) governs the appellate process and permits the appointment of two attorneys on appeal.” Howery, 178 Ill. 2d at 53. In conclusion, Illinois law does not mandate that all capital defendants be represented by two attorneys at trial, and the trial court here did not err in failing to appoint two attorneys to represent defendant at trial. Consequently, we find no plain error and no basis to excuse defendant’s procedural default of this argument.

G. Pro Se Post-Trial Motion

Defendant argues that the trial court erred by not appointing a new attorney to argue his pro se post-trial motion which alleged that his trial counsel was ineffective. Defense counsel filed a motion for a judgment notwithstanding the verdict or, alternatively, a new trial. Defense counsel also filed a motion to vacate defendant’s death sentence. In addition to these post-trial motions, defendant filed a pro se “motion to set aside jury verdict and motion for new trial.” Defendant alleged that his trial attorneys, Antonio DeCristifaro and Neil Kauffman, provided ineffective assistance of counsel. We note that DeCristifaro represented defendant on some of the pretrial matters. While the hearing on the motion to suppress defendant’s statements was pending, the trial court granted DeCristifaro leave to withdraw from the case because he was the subject of an Attorney Registration and Disciplinary Commission (ARDC) proceeding involving unrelated matters. The trial court appointed the office of the public defender to represent defendant. However, before the hearing on the motion to suppress resumed, the trial court granted the office of the public defender leave to withdraw when Kauffman entered an appearance on defendant’s behalf, and Kauffman remained defendant’s trial attorney. Previously, Kauffman had been the subject of an ARDC proceeding involving unrelated matters, and had been suspended from the practice of law for 18 months, but was reinstated to practice law at the time he entered his appearance in defendant’s case. The record reflects